Does John Edwards Deserve to Be Prosecuted?

As much of a pathological monster John Edwards is, the indictment against him for campaign finance violations this morning is almost Kafka-esque in its breadth: Under the prosecution's theory, there is essentially no legal way for a candidate for federal office to pay someone to keep quiet.

Edwards is accused of accepting $900,000 in illegal campaign donations from donors Fred Baron and Bunny Mellon and failing to report them to the Federal Election Commission. But Edwards never actually received the money—it all went straight to Rielle Hunter and her expenses. So where do prosecutors get off classifying payments from two people only tangentially related to the Edwards campaign—Baron was a fundraiser—to a woman who had no formal role in the campaign as political donations? Because of the reason the money was spent—to keep Hunter happy and quiet. From the indictment:

The purpose of the conspiracy was to protect and advance Edwards' candidacy for president of the United States by secretly obtaining and using hundreds of thousands of dollars in contributions...to conceal Edwards' extramarital affair with [Hunter] and [Hunter's] pregnancy with his child.

This is crucial. The entire indictment rests on the notion that the payments to Rielle were campaign-related. Without that foundation, there's nothing illegal about Mellon and Baron paying Rielle whatever they liked. In other words, paying someone to keep quiet about embarrassing information is a campaign expense, and therefore must be reported as such. This kind of defeats the purpose of paying someone to keep quiet about embarrassing information! Hush-money sounds dirty and wrong, and of course it is, but it happens all the time—it's usually called a settlement, and negotiated with lawyers. But if you try to do that in the context of a federal campaign and don't announce to the world that you're doing it by listing the recipient as a campaign expenditure, it's a crime.

Does John Edwards Deserve to Be Prosecuted?

Put another way: By the logic of the indictment, there was no legal way for Edwards to have kept Hunter quiet. He could have paid her out of his own pocket, which would have skirted the issue of illegal donations, since he's allowed to donate unlimited amounts to his own campaign. But the $900,000 in campaign revenue would still have to be reported to the Federal Election Commission. And more crucially, the $900,000 in campaign expenditures to Hunter would have to be disclosed as well, which would raise a few questions on the part of anyone paying attention to his filings and defeat the purpose of the whole hush-money enterprise.

Imagine that, before any of the story had become public, Hunter had filed a paternity claim against Edwards under seal. What legal options would Edwards have had? If he settled the matter confidentially in order to preserve his campaign, and paid her $900,000, would that have been a campaign expenditure? By the indictment's light, it would have, and would need to have been reported. There's no way out.

I'm no fan of Edwards, or Hunter, or wealthy people, or hush-money, or secrets. But it seems like there ought to be a legal way for politicians to make something quietly go away. And this case could have some rather drastic implications for other campaigns. For instance, Congress quietly pays out about $1 million per year to settle sexual harassment and other abuse claims filed by staffers against their bosses. That's taxpayer money paid out through the Congressional Office of Compliance, and the identities of the accusers and details are kept secret. Did anyone seek additional money from any member of Congress to avoid a civil lawsuit? Who knows. Tim Mahoney, the Florida congressman who replaced Tom Foley, secretly paid a former mistress $121,000 to keep quiet about their affair. He lost the election over it—and is being investigated for making false statements—but as far as I know he wasn't charged with a campaign finance crime. I bet John Edwards' attorneys are wondering why not.

[Images via Getty]